Pejouhesh v. United States Postal Service ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HASSAN ALI PEJOUHESH,
Plaintiff,
v. Civil Action No. 17-1684 (RDM)
UNITED STATES POSTAL SERVICE,
Defendant.
MEMORANDUM OPINION AND ORDER
This is the third summary judgment decision in what should have been a straightforward
FOIA case. In 2016 and 2017, Plaintiff Hassan Ali Pejouhesh submitted two FOIA requests to
the U.S. Postal Inspection Service—the U.S. Postal Service’s law enforcement division—seeking
records related to his prosecution and conviction for aiding and abetting bank fraud, possession
of stolen mail, and aggravated identity theft. The Postal Service located 61 pages of records
responsive to Plaintiff’s FOIA requests. It referred seven of those pages to other agencies,
released 37 pages with redactions pursuant to FOIA Exemptions (b)(6) and (b)(7)(C), and
withheld 17 pages (constituting the “Postal Inspection Service Search Warrant/Arrest Operation
Plan” (“Operation Plan”)) in their entirety pursuant to FOIA Exemptions (b)(6), (b)(7)(C), and
(b)(7)(E). Dkt. 16-3 at 3–5 (Mungin Decl. ¶¶ 6–10). Plaintiff, proceeding pro se, filed this
FOIA action, challenging the Postal Service’s withholdings. 1
1
Plaintiff also challenged the Postal Service’s document retention policy. That issue is no longer
before the Court. See Dkt. 22 at 5–7 (holding that Plaintiff lacked standing to challenge the
policy).
To date, the Court has granted summary judgment to the Postal Service on every issue
presented in this case, with three exceptions. See Dkt. 22; Minute Order (Nov. 2, 2020). First,
the Postal Service failed adequately to explain its decision to redact “third-party statements”
from certain responsive records. Dkt. 22 at 12–14. Second, the Postal Service failed adequately
to explain its invocation of FOIA Exemption 7(E) to withhold the Operation Plan documents in
their entirety. Id. at 14–15. Finally, the Postal Service “failed to carry its burden of showing that
it released all reasonably segregable material.” Id. at 16.
The Postal Service now moves for summary judgment with respect to the three remaining
issues. Dkt. 78. Plaintiff also moves for summary judgment, arguing that the Postal Service has
unlawfully withheld additional documents related to his prosecution—documents that were not
among the 61 pages of records that the Postal Service described in its Vaughn index. 2 Dkt. 63.
For the following reasons, the Court will GRANT the Postal Service’s motion in part and DENY
it in part; DENY Plaintiff’s cross-motion; and ORDER the Postal Service to file a status report
on or before March 28, 2022, explaining whether the Affidavit in Support of an Arrest Warrant,
withheld in part pursuant to Exemptions 6 and 7(C), should be released under the public domain
doctrine.
A. The Postal Service’s Motion for Summary Judgment
The Postal Service’s motion for summary judgment addresses the three issues that the
Court left open in its two prior decisions. See Dkt. 22; Minute Order (Nov. 2, 2020). As the
Court explained in both decisions, more information was needed to determine whether the Postal
Service (1) properly invoked FOIA Exemption 7(C) to redact “third-party statements;” (2)
2
Plaintiff’s motion is styled as a motion to compel or enforce. See Dkt. 63. The Court construed
the motion as a motion for summary judgment and ordered the Postal Service to file an
opposition. See Minute Order (Feb. 26, 2021). The Postal Service failed to do so.
2
properly invoked FOIA Exemption 7(E) to withhold the Operation Plan in its entirety; and (3)
“carr[ied] its burn of showing that it released all reasonably segregable material.” Minute Order
(Nov. 2, 2020). The Court addresses each issue in turn.
1. Exemption 7(C)
With respect to the Postal Service’s decision to withhold “third-party statements”
pursuant to Exemption 7(C), the Postal Service maintains that this issue is not properly before
the Court. As the Postal Service notes, the Court wrote in its most recent decision that the
remaining issues all relate “to 17 pages that Defendant withheld in their entirety”—that is, the
Operation Plan. The Postal Service now clarifies that the Operation Plan contains no third-party
statements, Dkt. 78-2 at 2–3, and thus, according to the Postal Service, any question regarding
whether it properly withheld the third-party statements is no longer at issue.
That argument is a strawman. As the Postal Service acknowledges in the very next
sentence of its brief, it did redact third-party statements from a different set of records—the
records that it partially released, which contained “victim[] . . . statements” describing “the
victim’s [sic] . . . account numbers, email address, addresses, or the type of accounts that was
compromised.” Id. Indeed, the Postal Service’s Vaughn index confirms that the agency
withheld third-party statements from a document described as an “Affidavit in Support of an
Arrest Warrant.” Dkt. 31-3 at 7. The problem the Postal Service previously faced—and that it
continues to face—is that its justification for those withholdings was—and is—too sparse to
permit meaningful judicial review. Accordingly, even if the Court need not decide whether the
third-party statements were properly redacted from the Operation Plan, it must now determine
whether they were properly redacted from the Affidavit in Support of an Arrest Warrant.
3
Recognizing that the propriety of its decision to withhold the third-party statements
remains unresolved, the Postal Service now offers a single sentence to support those redactions:
“The individuals whose names and statement were withheld have a substantial privacy interest
especially in the absence of any stated public interest.” Dkt. 78-3 at 3 (Warner Decl. ¶ 9 n.1).
That justification is, once again, unduly thin. But the Postal Service’s argument ignores an even
more significant problem: it appears that the government filed the Affidavit in Support of an
Arrest Warrant—without redactions—on the public docket in Plaintiff’s criminal case. See
Complaint at 2–9, United States v. Pejouhesh, No. 4:10-cr-687 (S.D. Tex. filed Sept. 24, 2010),
ECF No. 1. Under the “public domain doctrine,” records “normally immunized from disclosure
under FOIA lose their protective cloak once disclosed and preserved in a permanent public
record.” Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999). “[T]he logic of FOIA compels
the result: if identical information is truly public, then enforcement of an exemption cannot fulfill
its purposes.” Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16, 19 (D.C.
Cir. 1999). The fact that “similar information” is already public “does not suffice” for purposes
of the public domain doctrine, however; the “specific information sought . . . must already be in
the public domain by official disclosure.” Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007) (first
emphasis added).
According to the Postal Service’s Vaughn index, the only document from which it
redacted third-party statements and related material (including application numbers, account
numbers, addresses, and email addresses) is the Affidavit in Support of an Arrest Warrant. 3 Dkt.
3
The Vaughn index suggests that the victim statements were withheld pursuant to Exemption 6,
and not Exemption 7(C). The index does not mention victim statements elsewhere, however, so
the Court concludes that the “victim statements” that remain at issue in this case are those
mentioned in the Vaughn index.
4
31-3 at 7. The first entry in the criminal docket for Plaintiff’s prosecution in the Southern
District of Texas is a criminal complaint with an attachment that matches the description in the
Vaughn index: an eight-page document entitled “Affidavit in Support of an Arrest Warrant.” See
Complaint at 2–9, United States v. Pejouhesh, No. 4:10-cr-687 (S.D. Tex. filed Sept. 24, 2010),
ECF No. 1. That affidavit contains account numbers, email addresses, and home addresses, none
of which are redacted. See id. If the affidavit on the public docket is the same as the affidavit
listed in the Vaughn index, then the “exact” document that the Postal Service has withheld in part
from Plaintiff is already “a permanent public record,” and the Postal Service’s invocation of
Exemption 7(C) is precluded by the public domain doctrine. Cottone, 193 F.3d at 554.
To ensure that the document filed in Plaintiff’s criminal case is, in fact, the same
document that the Postal Service withheld in part from Plaintiff under Exemption 7(C), the Court
will order that the Postal Service file a status report within 14 days explaining (1) whether the
“victim statements” it withheld under Exemption 7(C) were publicly released on Plaintiff’s
criminal docket, and (2) whether the document containing those statements should be released
under the public domain doctrine.
2. Exemption 7(E)
With respect to the Operation Plan and Exemption 7(E), the Court previously held that
the Postal Service had failed “to explain how the identity of ‘third party individuals’ implicates
Exemption 7(E), which addresses law enforcement techniques, procedures, and guidelines.”
Dkt. 22 at 14; see also Minute Order (Nov. 2, 2020). Moreover, “even putting those problems
aside,” the Court further held that the Postal Service had “fail[ed] to offer any basis to conclude
that ‘disclosure could reasonably be expected to risk circumvention of the law.’” Dkt. 22 at
14 (quoting 5 U.S.C. § 552(b)(7)(E)); see also Minute Order (Nov. 2, 2020) (same).
5
In a declaration submitted along with the Postal Service’s renewed motion for summary
judgment, the Postal Service now attests that “Exemption 7(E) was . . . not used to redact the
names of the third-party located in the Operation Plan.” Dkt. 78-3 at 4 (Warner Decl. ¶ 13). The
declaration does not, however, explain—or even address—the Postal Service’s earlier assertion
that the Operation Plan “contained law enforcement sensitive information that could not be
released without destroying the integrity of the document, law enforcement techniques, or
without identifying third party individuals.” Dkt. 16-3 at 7 (Mungin Decl. ¶ 17) (emphasis
added). Because this case has been pending for over four years, and given the Postal Service’s
repeated failures to provide detailed declarations or a detailed Vaughn index, the Court ordered
the Postal Service to produce the 17-page Operation Plan for ex parte, in camera review. Minute
Order (Jan. 11, 2022). The Postal Service submitted the documents on January 14, 2022. Dkt.
100.
Having reviewed the Operation Plan, the Court now concludes that it was properly
withheld under Exemption 7(E). 4 That exemption “requires a two-step inquiry:” first, “the Court
must determine whether the records were compiled for law enforcement purposes.” Jud. Watch,
Inc. v. U.S. Dep’t of State, 282 F. Supp. 3d 36, 46 (D.D.C. 2017). Second, the Court “must
determine whether release of those records ‘would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be expected to risk
circumvention of the law.’” Id. (quoting 5 U.S.C. § 552(b)(7)(E)). For this second step,
4
The Court previously held that the Postal Service properly invoked Exemption 7(C) to withhold
the names and contact information of law enforcement employees from all of the responsive
records at issue in this case, including the Operation Plan. See Dkt. 22 at 13. The Court now
considers whether other, non-identifying information in the Operation Plan was properly
withheld.
6
“Exemption 7(E) sets a relatively low bar for the agency to justify withholding: ‘Rather than
requiring a highly specific burden of showing how the law will be circumvented, [E]xemption
7(E) only requires that the [agency] demonstrate logically how the release of the requested
information might create a risk of circumvention of the law.’” Blackwell v. FBI, 646 F.3d 37, 42
(D.C. Cir. 2011) (quoting Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009)).
The Operation Plan satisfies Exemption 7(E)’s requirements. To start, the document was
compiled for a “law enforcement purpose.” As the Postal Service correctly asserts in its most
recent declaration, the Plan contains:
(1) law enforcement agents[’] locations; (2) law enforcement telephone numbers;
(3) law enforcement undercover vehicles utilized in the operation; (4) how law
enforcement planned on executing the arrest and search warrant; ([5]) who the
suspects and targets were; ([6]) potential hazardous warnings identified by law
enforcement related to the operation; ([7]) federal law enforcement coordination
efforts with local law enforcement; ([8]) assignments for the law enforcement
involved in the operation; ([9]) signals utilized by law enforcement; and ([10])
evidence handling techniques utilized by law enforcement.
Dkt. 78-3 at 4–5 (Warner Decl. ¶ 15). Having reviewed the Plan, the Court finds that it served
the law enforcement purpose of memorializing a common plan for Postal Inspection Service
officers to follow when arresting Plaintiff and executing a search warrant. The first prong of
Exemption 7(E) standard is thus satisfied.
The Operation Plan also satisfies Exemption 7(E)’s “low bar” for the agency to justify
withholding documents the release of which would “disclose techniques and procedures for law
enforcement investigations.” 5 U.S.C. § 552(b)(7)(E). The Postal Service argues that
“[r]eleasing the Operation Plan would enable individuals to learn how the Inspection Service
approached arrests operations.” Id. at 5 (Warner Decl. ¶ 16). It contains, for example, “sensitive
information about how law enforcement plan[ned] on approaching the target residence during the
operation and how the agent [planned to] proceed once inside the target residence.” Id. The
7
Operation Plan also “contains sensitive information about how many law enforcement officers
[would] be utilized to conduct entry into the target residence and how many law enforcement
officers will provide security outside of the target residence.” Id. Thus, the Postal Service
contends, disclosure of the Plan would allow potential criminals to “plan criminal activities to
evade detection.” Id. (Warner Decl. ¶ 17). The Court agrees with the Postal Service’s
description and assessment of the Operation Plan. Although in a general sense, the kinds of
techniques described in the Plan may not be novel or secret, the details contained in the Plan, if
disclosed, could assist criminals in evading detection or arrest.
The Court, accordingly, concludes that the Postal Service properly withheld the
Operation Plan documents pursuant to Exemption 7(E).
3. Segregability
FOIA requires that the Postal Service engage in reasonable efforts to “segregate and
release nonexempt information,” 5 U.S.C. § 552(a)(8)(A)(ii)(II), and “[i]t is the government that
bears the burden of justifying the non-disclosure of records, including on the ground that non-
exempt records are not reasonably segregable,” Shapiro v. U.S. Dep’t of Just., 153 F. Supp. 3d
253, 287 (D.D.C. 2016). To carry this burden, the Postal Service must demonstrate “with
‘reasonable specificity’ why the documents cannot be further segregated.” Armstrong v. Exec.
Off. of the President, 97 F.3d 575, 578 (D.C. Cir. 1996).
The Court concludes that segregability is not possible for the Operation Plan. As
discussed, the Postal Service has provided the document to the Court, see Dkt. 100, and the
Court has determined that the Plan almost exclusively consists of enforcement personal
identifying information, plans, and techniques, which are properly withheld under FOIA
Exemption 7(E). The Court, moreover, credits the Postal Service’s view that releasing the
8
Operation Plan—even in redacted form—could “enable individuals to learn how the [Postal]
Inspection Service approache[s] arrest operations.” Dkt. 78-3 at 5 (Warner Decl. ¶ 12). The
Court thus concludes that the Operation Plan is not reasonably segregable.
With respect to the Affidavit in Support of an Arrest Warrant, the Court cannot conclude
whether the withheld victim statements are segregable until the Postal Service explains whether
the withheld document is, in fact, a public record. The Court thus concludes that it is premature
to assess that document’s segregability.
Finally, with respect to all other documents described in the Postal Service’s Vaughn
index, the Court concludes that the Postal Service produced all segregable, non-exempt
information. According to the Vaughn index, for every document other than the Operation Plan
and the affidavit containing victim statements, the Postal Service withheld only “[the] Postal
Inspector’s name” or “[the] Postal Inspector’s name and initials.” Dkt. 31-3 at 7. An
individual’s name, when properly redacted pursuant to Exemption 7(C), see Dkt. 22 at 16, cannot
be reasonably segregated. The Court, accordingly, finds that segregability is not possible for the
remaining documents described in the Postal Service’s Vaughn index.
In short, putting the Affidavit in Support of an Arrest Warrant to the side for the moment,
the Court concludes that the Postal Service reasonably segregated all documents described in its
Vaughn index. Because the Court cannot determine at this point whether the affidavit must be
disclosed in its entirety under the public domain doctrine, it is premature to determine whether
the Postal Service released all segregable, non-exempt information from that document.
B. Plaintiff’s Cross-Motion for Summary Judgment
For his part, Plaintiff seeks the release of documents that he alleges have been improperly
withheld by the Postal Service. Dkt. 63 at 1. Specifically, he requests “certified cop[ies]” of the
9
following: (1) the “search warrant of safe deposit boxes [at] Capitol One Banks;” (2) the “search
and seizure warrant of Plaintiff’s company, Pamco Inc.;” (3) the “search warrant and seizure
warrant of inventory of safe deposit boxes with signature[s] of witnesses of Capital One Bank
staff;” (4) the “search and seizure warrant of [the] inventory of [the] company safe (Pamco Inc)”;
(5) the “search and seizure warrant of [the] inventory of Plaintiff[‘s] storage unit at S. Dairy
Ashford Street”; (6) the “search and seizure warrant of [the] inventory of Plaintiff[s]
residen[ce];” (7) the “search and seizure warrant of inventory of Plaintiff[‘s] vehicles (3 trucks)
at Plaintiff[‘s] residence” and (8) “Plaintiff[‘s] American and Forei[g]n currency ver[ification]
sheet.” Dkt. 63 at 1–4. According to Plaintiff, the Postal Service “intentionally did not mention”
these documents “in [its] Vaughn index.” Id. at 1; see also Dkt. 31-3 at 7 (Vaughn index).
There are several problems with Plaintiff’s argument. First, the Postal Service has
already explained that it has no such records. In his first FOIA request in 2016, Plaintiff sought:
“arrest warrants, search warrants, wants [sic], warrants and detainers; all data
reports, investigative reports, scientific lab reports, and all exploratory records
and reports; factual proof of authorized jurisdiction ceded to the Federal
Administrative U.S. Attorney’s Office from the Governor to the United States
as required by law;” including a copy of search warrant/seized warrant for
“search warrant for safe deposit box under [his] name, [his] company name, and
[his] wife’s name on Capital One Bank, and list of seizure property from Bank,
office and home; search warrant for [his] offices, [his] home and [his] three cars
during investigation by Postal Inspector on September 2010; a copy of search
and seizure warrant with attachment for seizure no. 109-10-40, 109-10-41, 109-
10-42 and copy of list of property which seizure from safe deposit box at Capital
One Bank on September 2010.”
Dkt. 16-3 at 3–4 (Mungin Decl. ¶ 6) (quoting Plaintiff’s FOIA request). As explained above, the
Postal Service searched its computer database and located 61 pages of responsive records,
released 37 pages (either in full or with redactions), and withheld the remainder or referred them
10
to agencies for review. 5 The Postal Service also determined that “all hard copy documents and
evidence were destroyed when [Plaintiff] exhausted [the] appeals” of his conviction. Dkt. 16-3
at 4 (Mungin Decl. ¶ 7). Thus, “[t]he only documents that remain[ed]” in existence were those
“attached to the case file in [the computer database] when the case was active.” Id. (Mungin
Decl. ¶ 8). Unsatisfied, Plaintiff submitted a second FOIA request in 2017, seeking “a copy of
the search and seizure warrant for safe deposit box number 241 located at Capital One Bank;
search warrant for his office, home, and his three cars.” Id. at 5 (Mungin Decl. ¶ 9). In response,
the Postal Service did not conduct an additional search, and it advised Plaintiff that “he [had
been] provided with all remaining responsive material in existence which relate to the subject of
his request.” Id. at 5 (Mungin Decl. ¶ 9).
Second, the Court has already held that “the Postal Service conducted adequate searches
for the records Plaintiff sought” through both FOIA requests. Dkt. 22 at 9. Thus, to the extent
Plaintiff now suggests in his opposition brief that the Postal Service “did not conduct[] [an]
adequate . . . search for all records Plaintiff sought,” Dkt. 95 at 14, that argument is foreclosed by
the law of the case.
Finally, despite Plaintiff’s claims to the contrary, there is no evidence that the Postal
Service failed to include any documents in its Vaughn index. The Court has no reason to
question the Postal Service’s representations, made under the penalty of perjury, that the 61
pages of records listed in the Vaughn index are the only “responsive material in existence.” Dkt.
5
The Postal Service referred six pages of responsive records to the Department of Justice
Executive Office of the United States; those pages were later released by that office to Plaintiff
in full. See Dkt. 31-3 at 9. The Postal Service referred one page to the U.S. Office of
Immigration and Customs Enforcement (“ICE”), which determined that it should be released in
part and withheld in part pursuant to the Privacy Act, 5 U.S.C. § 552a and FOIA Exemptions 6,
7(C), and 7(E). Id. at 11–13. Plaintiff does not maintain that he pursued an administrative
appeal of ICE’s decision or that any dispute regarding that page is properly before the Court.
11
16-3 at 5 (Mungin Decl. ¶ 9). The Vaughn index describes each document that the Postal
Service located in response to Plaintiff’s FOIA requests and provides information regarding the
“type of document,” the “review status” and “redaction codes” for each document, “comments,”
and the “page [number]” that corresponds with each document. Dkt. 31-3 at 7. All 61 pages are
accounted for in the Vaughn index, with the last document listed—the 17-page Operation Plan—
comprising pages “45–61.” Id. The Court thus concludes that no responsive records in existence
were omitted from the Vaughn index.
The Court will, accordingly, deny Plaintiff’s motion for summary judgment.
CONCLUSION
For the foregoing reasons, the Postal Service’s motion for summary judgment, Dkt. 78, is
hereby DENIED with respect to Exemption 7(C), and GRANTED in all other respects.
Plaintiff’s motion for summary judgment, Dkt. 63, is hereby DENIED. The Postal Service is
ORDERED to file a status report on or before March 28, 2022, addressing (1) whether the eight-
page Affidavit in Support of an Arrest Warrant described in the Vaughn index is the same
document as the first entry on Plaintiff’s criminal docket, see Complaint at 2–9, United States v.
Pejouhesh, No. 4:10-cr-687 (S.D. Tex. filed Sept. 24, 2010), ECF No. 1; and (2) if so, whether
the document must now be released pursuant to the public domain doctrine.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: March 14, 2022
12